Mongol v Moulin
[2022] WASC 232
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MONGOL -v- MOULIN [2022] WASC 232
CORAM: STRK J
HEARD: 25 MARCH 2022
DELIVERED : 25 JULY 2022
FILE NO/S: SJA 1002 of 2022
BETWEEN: HADI MONGOL
Appellant
AND
ANDREW MOULIN
Respondent
ON APPEAL FROM:
For File No: SJA 1002 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D MALONE
File Number : FR 7332/2021
Catchwords:
Criminal law - Appeal against conviction - Application to adduce additional evidence pursuant to Criminal Appeals Act 2004 (WA) s 40(1)(e) - Whether there has been an error of law or fact - Whether there has been a miscarriage of justice - Whether the penalty imposed was excessive
Legislation:
City of Melville Parking Local Law 2016 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Legal Practitioner (Official Prosecutions) (Accused's Costs) Determination 2020 (WA)
Local Government Act 1995 (WA)
Result:
Application to adduce additional evidence refused
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr N Sloan |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | McLeods |
Cases referred to in decision:
Ajayi v The Queen [2012] WASCA 126; (2012) FLR 465
Basham v City of Joondalup [2015] WASC 345
Basham v City of Joondalup [No 2] [2016] WASC 120; (2016) 258 A Crim R 451
Borino v City of Stirling [2019] WASC 13
Clements v Town of Claremont [2011] WASC 193
Clements v Town of Claremont [2011] WASCA 253
De Domenico v Mallon [2010] WASC 285
Fitas v City of Vincent [2015] WASC 329
Floyd v The State of Western Australia [2013] WASCA 33
Genovese v City of Perth [2011] WASC 68
Genovese v City of Perth [2012] WASCA 89
Greenfield v The State of Western Australia [2019] WASCA 29
Johnson v The State of Western Australia [2009] WASCA 71; (2009) WAR 116
Nguyen v Comptroller‑General of Customs [2018] WASCA 170
NPK v The State of Western Australia [2020] WASCA 50
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45
Prazmo v Urquhart [2017] WASC 215
R v Rogers (1996) 86 A Crim R 542
Rodi v City of Joondalup [2014] WASC 330
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280
Strahan v Brennan [2014] WASC 190
Tey v City of Perth [2006] WASCA 211
Tsang v Francis [2021] WASCA 131
Warnakulasuriya v The Queen [2012] WASCA 10; (2012) 261 FLR 260
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494
Table of Contents
Introduction
The appeal
Grounds of appeal
The trial
The evidence before the learned Magistrate
Mr Luke Lawrence
Mr Mongol
Submissions made at trial
The Magistrate's factual findings and disposition
Additional evidence
Disposition
Ground 1 ‑ the incorrect clause of the Parking Local Law was applied
The respondent's position
Statutory framework
Disposition
Ground 2 ‑ there was no sign which prohibited parking
The trial
The respondent's position
Disposition
Related complaint
Ground 3 ‑ circumstances of sudden or extraordinary emergency existed
The trial
The respondent's position
Section 25 of the Criminal Code
Disposition
Ground 4 - the fine imposed was manifestly excessive
The maximum penalty
The range of sentences customarily imposed for the offence
The seriousness of the charge
Mr Mongol's personal circumstances
Disposition
Costs
Ground 5 ‑ the evidence of the prosecution witness was not 'true and correct'
The trial
Additional evidence
The respondent's position
Disposition
Application to adduce additional evidence ‑ determination
Conclusion
STRK J:
Introduction
On 5 August 2021, Mr Mongol was issued with a parking infringement notice under cl 3.6(1) of the City of Melville Parking Local Law 2016 (WA) (Parking Local Law). It is common ground that Mr Mongol had parked his vehicle so that a portion of it was parked on or over an area surrounding a roundabout located on Fiona Wood Road, Murdoch, which is within the district of the City of Melville. It is also common ground that Mr Mongol disputed the issue of the infringement notice and did not pay the modified fine imposed within the timeframe prescribed or at all, being $70.
Upon Mr Mongol's election to challenge the infringement notice, the infringement notice was withdrawn and a prosecution was commenced (being charge FR 7332 of 2021). Mr Mongol was charged with contravention of cl 3.10(e) of the Parking Local Law.
Mr Mongol entered a plea of not guilty and on 9 December 2021, following a trial, was found to have contravened cl 3.10(e). Mr Mongol was ordered to pay a fine in the amount of $200, together with costs in the amount of $2,003.[1]
[1] ts 20 (9 December 2021).
Mr Mongol now seeks to appeal his conviction and the penalty imposed. For the reasons set out below, I find that it is appropriate that leave to appeal be refused on all grounds and the appeal be dismissed with costs.
The appeal
The Criminal Appeals Act 2004 (WA) s 7(1) allows an aggrieved party to appeal to this court in respect of a decision made by a court of summary jurisdiction. As the appeal was commenced within the prescribed period, Mr Mongol does not require an extension of time to appeal.[2]
[2] Criminal Appeals Act s 10(3), (4).
This is an appeal under pt 2 of the Criminal Appeals Act and Mr Mongol requires leave to appeal on each ground of appeal.[3] The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.[4] This means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[5] If leave to appeal is refused, the appeal is taken to be dismissed.[6]
[3] Criminal Appeals Act s 9(1).
[4] Criminal Appeals Act s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] Criminal Appeals Act s 9(3).
It is appropriate that the application for leave to appeal be heard together with the appeal.[7]
[7] Samuels v The State of Western Australia [56]; and as contemplated by order 1 of the orders made by Registrar Whitbread on 24 January 2022 with respect to this matter.
The Criminal Appeals Act s8(1)(a) permits an appeal against conviction or sentence in the Magistrates Court to be made on grounds which include that the court of summary jurisdiction made an error of law or fact, or of both law and fact; acted without or in excess of jurisdiction; or imposed a sentence that was inadequate or excessive. Further, an appeal can be brought pursuant to s 8(1)(b) on the ground that there has been a miscarriage of justice.
This court's power on an appeal includes the power under the Criminal Appeals Act s 14(1)(b) to allow the appeal. However, even if a ground of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[8]
[8] Criminal Appeals Act s 14(2).
As to the material to be considered on appeal, the court must decide the appeal on the evidence and material that were before the lower court.[9]
[9] Criminal Appeals Act s 39(1); see also Criminal Procedure Rules 2005 (WA) r 64.
Among other grounds, Mr Mongol argues that the learned Magistrate made errors of fact. To the extent that he so contends, this court must review the evidence and decision‑making process of the Magistrates Court. However, in doing so, it must bear in mind that this is an appellate court, not the court of trial, and unlike the Magistrate, this court has not had the advantages of seeing the witnesses and hearing the evidence presented. This court will not have, as his Honour did, the advantage of getting a feel for the case and the people involved.[10] This court must review the evidence led at trial in its entirety, bearing in mind the natural limitations which are imposed by the fact that this court must review the case remote from the trial.[11]
[10] As observed in De Domenico v Mallon [2010] WASC 285 [9].
[11] De Domenico v Mallon [10].
I also note that where the reasons of a magistrate indicate that the magistrate has made an error of fact, but that the error was inconsequential or immaterial to the decision to convict, then the court can conclude that no substantial miscarriage of justice has occurred by reason of the error.[12]
[12] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494, 535 [239].
Grounds of appeal
Mr Mongol expressed his grounds of appeal as follows:[13]
1. Made an error of law or fact
2. Imposed a fine that was excessive
3. Miscarriage of justice
[13] Appeal notice filed on 4 January 2022, page 1.
Mr Mongol expanded upon the grounds in the following terms:[14]
Appeal ground details are as follows:
1.Made an error of law or facts Miscarriage of justice, according to parking infringement notice that was issued on 5th of august 2021 to the appellant HADI MONGOL's vehicle, the alleged offence was bridged of section [clause] 3.6(1) of local parking law 2016 of the city of Melville. but on 9th of December 2021 the decision or conviction was made by the magistrate Malone at the Fremantle magistrate court was on section or clause 3.10(e) of the city of Melville Parking law 2016. I understand that it is a legal error made by the magistrate Malone by apply an incorrect section [clause] of the Local parking law of the city of Melville when making his decision on the 9th of December.
2.The magistrate overlooked the facts that I provided at the [trial] that there was no, No Parking sign displayed on the street where I parked my vehicle on 5th of August 2021 along with 20 to 25 other vehicles on the same location and the same time.
3.The Magistrate Malone also overlooked any personal circumstances which has affected the sentence & which I consider an emergency at the time on 5th of August 2021, as I had job at the emergency department of the Fiona Stanley hospital.
4.I believe Imposed of $2023 fine is excessive which includes the legal cost of the prosecutor because the parking infringement was only $70, your [Honour] I was not mistaken of law or I didn't break any parking law the only reasons that I parked my vehicle at that location was because I witnessed around 20 to 25 vehicles were parked at the same street & location on daily basis for the past two years and also most importantly because there was no display sign of NO Parking Zone or NO stopping Zone. As this street is next to the Murdoch train station and Fiona Stanley hospitals car parks.
5.Your [Honour] I am not lawyer neither I am criminal. I am an interpreter by profession & I have been working for the department of justice for the past ten years, providing interpreting services for magistrate courts, district courts, federal courts & supreme courts of Australia on regular basis. So, I will never do anything wrong or illegal that may affect my work & reputation. I am only appealing at the honourable supreme court to seek justice.
[14] Appeal notice filed on 4 January 2022, page 3.
In support of the application for leave to appeal and the appeal, Mr Mongol filed a written outline of submissions on 23 February 2022. The submissions contained therein went beyond the scope of the grounds of appeal expressed in the appeal notice.
From my review of the appeal notice and Mr Mongol's written submissions, I understood that Mr Mongol sought to agitate the following matters:
(a)the incorrect clause of the Parking Local Law was applied;
(b)there was no sign which prohibited parking;
(c)circumstances of sudden or extraordinary emergency existed;
(d)the fine imposed was manifestly excessive; and
(e)the evidence of the prosecution witness was not 'true and correct'.
While it was the subject of contention at trial, in this appeal Mr Mongol does not challenge the finding made by the learned Magistrate that the area surrounding the roundabout on Fiona Wood Road is a footpath.
Although the complaint was not canvassed expressly in the appeal notice, Mr Mongol's written submissions at pars 6 to 7 included submissions as to the matter described in [16(e)].
There was no prejudice to the respondent in this regard. The respondent was on notice of the additional ground for a considerable period prior to the hearing and the respondent's written submissions filed on 18 March 2022 expressly addressed each of the five matters described in [16] above.
As there was no prejudice to the respondent, all of the issues raised by Mr Mongol in his appeal notice and submissions were considered in the determination of the application and the appeal.
The trial
The trial was conducted on 9 December 2021. The prosecution called one witness, Mr Luke Lawrence. Mr Mongol gave oral evidence on his own behalf. Mr Mongol called no other witnesses.
I have carefully reviewed the evidence led at trial in its entirety and have weighed in the balance the whole of the evidence in the determination of this appeal.
The evidence before the learned Magistrate
At the trial, a number of documents were tendered into evidence without objection. The first was a certificate dated 30 September 2021, issued by an authorised officer pursuant to the Local Government Act 1995 (WA) s 9.41(3).[15] By that certificate, it was established that on 5 August 2021, Fiona Wood Road, Murdoch, was within the district of the City of Melville.
[15] Exhibit P1; ts 3 (9 December 2021); Local Government Act s 9.33.
The second was a certificate dated 24 August 2021, issued by an authorised officer pursuant to the Road Traffic (Administration) Act 2008 (WA) s 110(3).[16] By that certificate, it was established that on 5 August 2021, a grey 2021 Haval H9 station sedan plate number 1HHK444, was licenced to Mr Mongol.
[16] Exhibit P2; ts 3 (9 December 2021).
The third was a copy of the Parking Local Law as published in the Western Australian Government Gazette No. 198 on 3 November 2016.[17]
Mr Luke Lawrence
[17] Exhibit P3; ts 3 (9 December 2021); Local Government Act s 9.34.
The respondent called Mr Luke Lawrence, a ranger employed by the City of Melville, to give evidence. Mr Lawrence was cross‑examined by Mr Mongol. At trial Mr Lawrence gave evidence to the effect that:
(a)he is an authorised person for the purposes of the Parking Local Law;[18]
[18] ts 5 (9 December 2021).
(b)he has access to all documents held by the City of Melville in relation to all parking matters;[19]
[19] ts 6 (9 December 2021).
(c)on 5 August 2021, he conducted a routine patrol on Fiona Wood Road, in what he described as the 'Fiona Stanley Hospital area';[20]
(d)in the course of that patrol, he observed a number of vehicles parked on the footpath on Fiona Wood Road, which included a grey Haval, number plate 1HHK444, which was parked on the area designated as a footpath for pedestrians. Mr Lawrence also observed pedestrians on the footpath at the time;[21]
(e)he took four photographs of the vehicle, which included photographs in which the vehicle can be seen to be parked on the footpath and the licence plate of the vehicle (1HHK444) can be seen;[22]
(f)he took additional photographs, in which the roundabout on Fiona Wood Road, surrounded by a footpath can be seen;[23]
(g)after taking the photographs, he inspected the vehicle for any sign of breakdown;
(h)after observing that there was no sign of vehicle breakdown, he proceeded to issue an infringement notice by printing an infringement notice from a device that he had with him and affixing the infringement notice to the vehicle, by placing it underneath a windscreen wiper;[24]
(i)the City of Melville received correspondence from Mr Mongol on the same day, by which he sought to appeal the infringement notice;[25]
(j)the City of Melville responded to Mr Mongol's appeal by letter dated 19 August 2021. Mr Mongol was advised of the outcome of the infringement dispute;[26]
(k)on the same day, the City of Melville received from Mr Mongol an election to have the matter proceed to a hearing;[27] and
(l)no modified penalty was paid by Mr Mongol.[28]
[20] ts 6 (9 December 2021).
[21] ts 6 (9 December 2021).
[22] Exhibit P4; ts 6 (9 December 2021).
[23] Exhibit P5; ts 7 (9 December 2021).
[24] ts 7 (9 December 2021).
[25] Exhibit P6; ts 7 (9 December 2021).
[26] Exhibit P7; ts 8 (9 December 2021).
[27] ts 8 (9 December 2021).
[28] As to the reference to a 'modified penalty', I note that an offence against a clause specified in sch 2 of the Parking Local Law is a prescribed offence for the purposes of s 9.16(1) of the Local Government Act. The reference to the 'modified penalty' is a reference to a modified penalty for a prescribed offence, the amount of which is specified in column 4 of sch 2 to the Parking Local Law, adjacent to the clause: cl 7.12(2) of the Parking Local Law.
A copy of the City of Melville's letter dated 19 August 2021 referred to at [26(j)] above, which was sent under cover of an email communication sent to Mr Mongol on the same date, was tendered in evidence as exhibit P7. The letter was signed by Mr Andrew Moulin, Senior Ranger and employee of the City of Melville. I note that Mr Moulin was the officer of the City of Melville who issued the prosecution notice on behalf of the City of Melville, and Mr Moulin is named as the respondent to the appeal.
The letter states, among other things:
…
As your vehicle was parking in contravention of Local Law 3.6(1), the parking infringement cannot be withdrawn on this occasion.
I would appreciate you forwarding your remittance of $70.00 on or before 19 September 2021 to ensure no further costs and action on this matter.
Mr Mongol
Mr Mongol gave evidence on his own behalf and was cross‑examined.
Mr Mongol gave evidence to the effect that for the last 12 years, he has provided interpreting services to the Department of Justice, the Department of Health and Education, and the Department of Home Affairs. He tendered into evidence various interpreter accreditation cards.[29]
[29] Exhibit A1; ts 11 (9 December 2021).
Mr Mongol gave evidence to the effect that on 5 August 2021, he attended Fiona Stanley Hospital to provide an emergency interpreting service for a patient in the emergency department.[30] Mr Mongol tendered into evidence a taxation invoice rendered for interpretation services provided on 5 August 2021 at the emergency department of Fiona Stanley Hospital.[31]
[30] ts 12 (9 December 2021).
[31] Exhibit A2; ts 11 (9 December 2021). (Exhibit A2 could not be located by the Magistrates Court and did not form part of the exhibits provided to this Court).
Mr Mongol also tendered into evidence a bundle of photographs taken by Mr Mongol on his mobile telephone at a similar location as where he had parked on 5 August 2021. The photographs were taken on various dates from 5 August 2021 (the date of the offence) to 8 December 2021 (the day prior to the trial).[32]
[32] Exhibit A3; ts 12 (9 December 2021).
As noted above, it is common ground that Mr Mongol parked his car on the area which surrounded the roundabout located on Fiona Wood Road, within the district of the City of Melville. In the course of cross‑examination, Mr Mongol gave evidence to the effect that he did so as he was unable to locate parking, having tried to locate a parking space within the car parks for 15 to 20 minutes.[33] He gave evidence to the effect that there was staff parking usually available to him at a reduced rate of $0.48 per hour, but the carpark was full. When it was put to Mr Mongol in the course of cross‑examination that he was late for work, Mr Mongol responded 'No, I wasn't late. I was on time but all of the parkings were full'.[34]
[33] ts 12 ‑ 13 (9 December 2021).
[34] ts 14 (9 December 2021).
As to where he had parked his car, the effect of Mr Mongol's evidence in cross‑examination was that he did not accept the paved area surrounding the roundabout to be a footpath, as:
(a)he observed the paved area to be very wide (of a width on which he could 'easily park' his 'huge' car);
(b)he had observed about 20 to 25 cars parked on the paved area; and
(c)he had not observed any 'no parking' signs.[35]
[35] ts 13 (9 December 2021).
The essence of Mr Mongol's evidence was that he thought he could park at the time in that place. His reasons for so believing were that many others were similarly parked, and there were no 'no parking' signs in the area.
Submissions made at trial
Counsel for the prosecution submitted that all of the elements of the offence were made out. That is, it had been established that Fiona Wood Road was in the district of the City of Melville; Mr Mongol was the driver of the vehicle at the time of the alleged offence; and Mr Mongol parked on a footpath on the day in question.[36]
[36] ts 14 ‑ 15 (9 December 2021).
As to whether the area on which Mr Mongol parked was a footpath, Mr Sloan as counsel referred to the Parking Local Law cl 1.5, which provides:
footpath means the paved or made portion of a thoroughfare used by, or set aside or intended for use by, pedestrians or both pedestrians and cyclists;
Counsel submitted that the paved area on Fiona Wood Road where Mr Mongol parked was a footpath for the purposes of the Parking Local Law, and the fact that there was no sign was not determinative of the charge. He submitted that Mr Mongol had made a mistake as to law, and the facts did not give rise to a defence of sudden or extraordinary emergency.[37]
[37] ts 15 (9 December 2021).
Mr Mongol referred to the photographs he had taken over many months, which revealed that many cars had parked on the area where he had parked. He submitted that there was insufficient parking to meet the needs of the area and that the City of Melville had failed to solve the parking issue. Further, he noted that there was no sign which stated that cars were not permitted to park in the area. He also submitted that he had parked in the area in circumstances of emergency.[38]
The Magistrate's factual findings and disposition
[38] ts 15 ‑ 16 (9 December 2021).
The learned Magistrate delivered oral reasons at the conclusion of the trial.
His Honour referenced the legislative framework pursuant to which Mr Mongol had been charged. His Honour observed that it was alleged that on 5 August 2021 at Murdoch, within the district of the City of Melville, Mr Mongol parked a vehicle so that a portion of the vehicle was parked on a footpath, contrary to cl 3.10(e) of the Parking Local Law.
The learned Magistrate noted that he had heard the evidence of Mr Lawrence, the sole witness for the prosecution, and had received various documents into evidence, namely a certificate confirming that the road in question is located in the City of Melville; evidence which confirmed that the vehicle was registered to Mr Mongol; the Government Gazette of the Parking Local Law; photographs of the car and where it was parked; and Mr Mongol's communication with the City of Melville and the City's reply to the same.[39]
[39] ts 16 ‑ 17 (9 December 2021).
His Honour accepted that Mr Mongol works as an interpreter and had been booked for a job at Fiona Stanley Hospital on 5 August 2021.
His Honour found that the area in which Mr Mongol had parked his vehicle was a footpath. He found that it was 'very definitely a footpath or an area of refuge for pedestrians and, of course, it was illustrated by there being pedestrians that [had] taken [refuge] or using the footpath'.[40]
[40] ts 17 (9 December 2021).
His Honour found that on 5 August 2021, Mr Mongol had parked his car on a footpath at a roundabout.
The learned Magistrate acknowledged that the evidence revealed that others were doing what Mr Mongol did that day. However, his Honour found that the contravention of others did not afford Mr Mongol a defence to the charge.
As to Mr Mongol's submission that he parked in the location because of an emergency, his Honour found as follows:[41]
As far as any business is concerned about the reason, Mr Mongol has just decided to do it and there is no emergency associated with it.
Sure, he has a job. Sure, there might be some cheap parking available but he couldn't find anywhere so, just along with other people, parked on the footpath.
[41] ts 17 (9 December 2021).
As to signage, it can be reasonably inferred from his Honour's reasons that his Honour accepted that there were no 'no parking' signs near the location where Mr Mongol had parked his vehicle. In this regard, his Honour observed:[42]
Now, it's just not practical for the council to put up signs every single place that you could possibly think of where people's ingenuity might indicate that they can fit their vehicle. Here, it's a footpath that's wide enough to take vehicles so people like Mr Mongol did on this day park their vehicles on there but it doesn't legitimise it, and it's not a situation where you need some signage because the law says you can't do it and ignorance of the law is of no excuse.
[42] ts 17 ‑ 18 (9 December 2021).
Having concluded that ignorance of the law was no excuse, his Honour went on to find:[43]
At the end of the day, Mr Mongol is protesting that because he had a particular job and other people had a reason to go to the hospital, that there should be the parking for everyone who could possibly want to go to Fiona Stanley [Hospital] at any given time of any given day, and that's an issue that Mr Mongol will need to get elected to the City of Melville and campaign for more parking around the hospital or whatever it certainly doesn't and can't excuse him - his parking of the car on the day.
… the elements of the offence [have] clearly been established beyond reasonable doubt and there was no emergency, no other defence that's available to excuse at law what Mr Mongol did. So the court comes to the conclusion that, unquestionably, the charge has been proved beyond a reasonable doubt and convicts Mr Mongol accordingly.
[43] ts 18 (9 December 2021).
As to sentence, counsel made no submission as to the seriousness of the offending but noted that the maximum penalty under the Parking Local Law was $5,000. In seeking costs, while counsel accepted that the matter was not complicated, he submitted that the City of Melville was put to the expense of attending to one earlier appearance, and to the expense of attendance of counsel at trial with a witness. Counsel sought 'hours at the scale plus disbursements', in the total amount of $2,003.[44]
[44] ts 18 (9 December 2021).
After hearing submissions, his Honour declined to impose a fine in an amount equivalent to the modified penalty that would have been payable had Mr Mongol paid the same upon the issue of the infringement notice. His Honour found that the imposition of such a penalty was not appropriate upon an unsuccessful election to challenge an infringement notice. The learned Magistrate imposed a fine of $200 and ordered Mr Mongol to pay the respondent's costs of $2,003.
Additional evidence
Prior to the hearing of the appeal, Mr Mongol filed a written outline of submissions in support of the appeal. In the submissions, Mr Mongol, among other things:
(a)referred to the infringement notice issued to him on 5 August 2021, noting that he had in his possession a copy of the same; and
(b)attached a copy of an email communication sent by him to the City of Melville dated 5 August 2021.
It could be inferred from the submissions that Mr Mongol wished to adduce evidence at the hearing of the appeal which was not before the learned Magistrate. In addition to the documents described at [52] above, Mr Mongol also wished to adduce evidence to establish that photographs tendered at trial and marked as exhibit P5 were taken by Mr Mongol, not Mr Lawrence.[45] I understood that Mr Mongol sought to adduce this evidence to support Mr Mongol's fifth ground of appeal, that is, Mr Mongol's contention that the evidence of Mr Lawrence was not 'true and correct'.
[45] Appellant's submissions par 7, page 3.
At the hearing of the appeal, I directly raised with Mr Mongol that he had referred to documents in his submissions that were not before the learned Magistrate at trial, and no application to adduce additional evidence had been made in advance of the hearing of the appeal. Mr Mongol stated that he was not aware of the need to bring an application, but that he did wish to rely on the additional documents and he wished for the documents to be considered in the determination of his appeal.[46]
[46] ts 4 (25 March 2022).
There was no affidavit before the court which attached the documents now sought to be relied upon, stating what they were, or proffering any explanation as to why they were not before the Magistrate at trial, and why they were relevant to the appeal.
I understood counsel for the respondent to neither consent to nor oppose an application to admit additional evidence on the basis of prejudice or delay. Mr Sloan expressed the respondent's position as follows:[47]
We say that in any event, nothing turns on the photograph. There's no miscarriage of justice even in the event that Mr Mongol is successful in his application.
[47] ts 5 (25 March 2022).
In circumstances where Mr Mongol was not represented in the appeal, I determined it appropriate to allow Mr Mongol to make an oral application to adduce additional evidence, in preference to dismissing his oral application by reason of his failure to comply with the applicable procedural requirements, or to adjourn the hearing of the appeal to allow Mr Mongol to file a competent application.
As there was no affidavit made in support of the application, I decided that Mr Mongol may give evidence as to the additional documents, which I would receive on a provisional basis but reserve my decision as to whether to allow the application to admit the evidence on the appeal. I adopted this pragmatic approach so as to allow Mr Mongol the opportunity to advance at the hearing of the appeal all of the arguments that he wished to make in the prosecution of his appeal. Counsel for the respondent did not object to this course.[48]
[48] ts 6 (25 March 2022).
Given the approach that I adopted to the appellant's application to admit the additional evidence, and the legal principles to be applied in determining such applications to which I will refer below, I propose to deal with the merits of appeal in light of the additional evidence and then, having done this, to return to the question of whether the application to adduce additional evidence should be allowed.
Disposition
I now turn to consider the grounds of appeal.
I note that when considering the learned Magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was observed by Martin CJ in Strahan v Brennan,[49] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[50]
[90]... it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[49] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[50] Strahan v Brennan [90].
I have approached the learned Magistrate's reasons with this in mind. I also proceed on the basis that the failure to refer to relevant matters by a magistrate does not necessarily give rise to an inference that the matter was not considered. In the absence of credible evidence to the contrary, it is to be assumed that the decision‑maker has complied with all relevant duties and taken all matters into account.[51]
[51] Rundle v Innerd [2015] WASC 340 [117].
For the reasons which follow I find that Mr Mongol's application for leave to appeal must be refused on all grounds. As the appeal ultimately must fail on all grounds, it is appropriate that the appeal be dismissed.
Ground 1 ‑ the incorrect clause of the Parking Local Law was applied
By the first ground of appeal, Mr Mongol challenged the prosecution of an offence pursuant to cl 3.10(e) of the Parking Local Law. He submitted that the learned Magistrate made an error of law by convicting him of an offence under cl 3.10(e) in circumstances where the infringement notice referenced cl 3.6(1).[52]
[52] Appellant's submissions par 1, page 1; ts 23 (25 March 2021).
At trial, it was established that Mr Lawrence issued an infringement notice on 5 August 2021 and attached the notice to Mr Mongol's vehicle. The infringement notice was not however tendered into evidence, and the application of cl 3.6(1) was not agitated. The only reference to cl 3.6(1) in the evidence before the learned Magistrate was the reference made to the provision by Mr Moulin in his letter dated 19 August 2021. The relevant passage of Mr Moulin's letter is reproduced at [28] above.
The effect of Mr Mongol's additional evidence was that he had been issued with an infringement notice, and he sought to tender a copy of the same. The infringement notice was marked for identification as B1.[53]
[53] ts 12 (25 March 2022).
The infringement notice records among other things, the date of issue (being 5 August 2021); and the time of the offence (being 2.13 pm). It also refers to cl 3.6(1) and includes the words 'STOPPED OR PARKED ON OR ADJACENT TO A MEDIAN STRIP'.
The effect of Mr Mongol's evidence at trial was that he immediately sought to appeal the issue of the infringement notice and sought that the City of Melville withdraw the same, and his request was refused by the City of Melville.[54] Further, he did not pay the modified penalty recorded on the infringement notice by the due date or at all.
[54] Exhibit P6; ts 7 (9 December 2021).
A prosecution against Mr Mongol was subsequently commenced and the details of the alleged offence as set out in the prosecution notice are reproduced below:
Details of alleged offence
Description
A person who stopped or parked a vehicle so that any portion of the vehicle on or over a footpath or a place of refuge for pedestrians
Date or period
05 August 2021
Place
Murdoch
Within the district of the City of Melville, parked a vehicle so that a portion of the vehicle was on a footpath, contrary to clause 3.10(e) of the City of Melville Parking Local Law 2016.
The infringement notice contained no reference to cl 3.6(1) of the Parking Local Law.
The respondent's position
The respondent to the appeal conceded the offence with which Mr Mongol was prosecuted was different to the offence described in the infringement notice issued on 5 August 2021. The respondent however maintained that an infringement notice, including the process by which an infringement notice is issued, has no bearing upon and does not amount to any sort of precondition to the commencement of a prosecution by way of a prosecution notice.[55]
Statutory framework
[55] Respondent's submissions pars 11 - 15; ts 26 (25 March 2022).
In determining the first ground of appeal, and the others, it is necessary to have regard to the statutory framework pursuant to which the infringement notice was issued and pursuant to which Mr Mongol was subsequently prosecuted. Relevantly, I note as follows.
The Parking Local Law is a law made under the powers of the Local Government Act.[56] Part 9, div 2 of the Local Government Act concerns enforcement and legal proceedings, and subdiv 2 of div 2 concerns infringement notices. The Local Government Act and the Parking Local Law, read together, provide the power pursuant to which Mr Lawrence issued an infringement notice to Mr Mongol; Mr Mongol was liable to pay a modified penalty; Mr Mongol was prosecuted and ultimately convicted; and the learned Magistrate imposed a penalty upon conviction.
[56] Local Government Act s 3.5(1); see also the Parking Local Law, which provides that 'Under the powers conferred by the Local Government Act 1995 and all other powers enabling it, the Council of the City of Melville resolved on 20 September 2016 to make the following local law'.
By operation of s 3.10(1) of the Local Government Act, a local law made under the Local Government Act may provide that contravention of a provision of the local law is an offence, and may provide for the offence to be punishable on conviction by a penalty not exceeding a fine of $5,000. Section 3.10(6) of the Local Government Act further provides that a local law made under the Local Government Act may specify the method and the means by which any fines imposed are to be paid and collected, or recovered.
Clause 7.11 of the Parking Local Law provides that any person who contravenes or fails to comply with a provision of the Parking Local Law commits an offence and is liable upon conviction to a penalty not exceeding $5,000, and if the offence is of a continuing nature, to an additional penalty not exceeding $500 for each day or part of a day during which the offence has continued.
Clause 3.10(e) of the Parking Local Law provides:
3.10 Traffic obstructions
Subject to any law relating to intersections with traffic control signals, a person shall not stop or park a vehicle so that any portion of the vehicle is –
…
(e)on or over a footpath or a place of refuge for pedestrians;
…
unless a sign or markings on the carriageway indicate otherwise.
Clause 3.6 of the Parking Local Law provides:
3.6 Parking a vehicle on a carriageway
(1)A person parking a vehicle on a carriageway other than in a parking space shall park it -
(a)In the case of a two‑way carriageway, so that it is as near as practicable to and parallel with, the left boundary of the carriageway and headed in the direction of the movement of traffic on the side of the thoroughfare on which the vehicle is parked;
(b)in the case of a one‑way carriageway, so that it is as near as practicable to and parallel with either boundary of the carriageway and headed in the direction of the movement of traffic on the side of the thoroughfare on which the vehicle is parked;
(c) so that at least 3 metres of the width of the carriageway lies between the vehicle and the farther boundary of the carriageway, or any continuous line, or dividing strip, or median strip, or between the vehicle and a vehicle parked on the farther side of the carriageway;
(d) so that the front or the rear of the vehicle respectively are not less than one metre from any other vehicle, except a motorcycle without a trailer, or a bicycle parked in accordance with this local law;
(e) so that it does not obstruct any vehicle on the carriageway; and
(f) so that any portion of it is not on a median strip.
(2) In this clause 'continuous dividing line' means ‑
(a) a single continuous dividing line only;
(b) a single continuous dividing line to the left or right of a broken dividing line; or
(c) 2 parallel continuous dividing lines.
Clause 7.12 of the Parking Local Law concerns prescribed offences and modified penalties and provides as follows:
(a)An offence against a clause specified in Schedule 2 is a prescribed offence for the purposes of section 9.16(1) of the Act.
(b)The amount of the modified penalty for a prescribed offence is that specified in column 4 of Schedule 2 adjacent to the clause.
The reference to 'the Act' in cl 7.12(a) and throughout the Parking Local Law is a reference to the Local Government Act.
The reference in cl 7.12 of the Parking Local Law to the modified penalty applicable to an offence for the purposes of s 9.16(1) of the Local Government Act, is a reference to modified penalties applicable to prescribed offences payable upon the issue of an infringement notice.
By operation of s 9.16(1) of the Local Government Act, an authorised person who has reason to believe that a person has committed a prescribed offence against a regulation or local law made under the Local Government Act may, within 28 days after the alleged offence is believed to have been committed, give an infringement notice to the alleged offender.
An offence against cl 3.6(1) (Stopping or parking on or adjacent to a median strip) of the Parking Local Law, is a clause specified in sch 2 of the Parking Local Law, and is therefore a prescribed offence for the purposes of s 9.16(1) of the Local Government Act. The modified penalty for such offence is $70.
An offence against cl 3.10(e) (Parking on a footpath) of the Parking Local Law, is also a clause specified in sch 2 of the Parking Local Law, and is therefore a prescribed offence for the purposes of s 9.16(1) of the Local Government Act. The modified penalty for such offence is $90.
Section 9.21 of the Local Government Act is titled 'Benefit of paying modified penalty', and is found in pt 9, div 2 of the Local Government Act. Section 9.21 provides as follows:
9.21. Benefit of paying modified penalty
(1) Subsection (2) applies if the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed and the notice has not been withdrawn.
(2) If this subsection applies it prevents the bringing of proceedings and the imposition of penalties to the same extent that they would be prevented if the alleged offender had been convicted by a court of, and punished for, the alleged offence.
(3) Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.
Disposition
In considering the first ground of appeal, I have had regard to and applied the decision of Chaney J in Rodi v City of Joondalup [2014] WASC 330, which concerned an appeal against a conviction of an offence against the City of Joondalup Parking Local Law 1998 (WA). Mr Rodi had been convicted of an offence of having failed to display an unexpired ticket so that the date, expiry time and number printed on the ticket were clearly visible to and able to be read by an authorised person from outside the vehicle, when he parked a vehicle in a ticket zone within the City of Joondalup on 26 February 2013.
In prosecuting his appeal, among other things, Mr Rodi argued that the prosecution notice did not identify the infringement number to which the prosecution related. As to this complaint, Chaney J acknowledged that as a matter of fact, the prosecution notice did not set out the number of the infringement notice which preceded it. In refusing the appeal, his Honour found as follows:
[8]In my view, there is no merit in this ground. That is because there is no requirement for a prosecution notice to recite or make any reference to an infringement notice. And I might say at this point ‑ because it is relevant to other grounds upon which Mr Rodi seeks to appeal ‑ that I do not consider that the infringement notice procedure has any bearing upon, or amounts to any sort of precondition to, the institution of a prosecution by way of a prosecution notice where there has not been a payment of a modified penalty or notification of the identity of some other offender following receipt of that infringement notice.
[9] So the fact that the prosecution notice does not identify an infringement number to which the prosecution relates has no bearing on the entitlement of the authority to bring the prosecution and the first of Mr Rodi's grounds, therefore, has no merit.
As to a second ground of appeal, Chaney J found that:
[14]… it remains open, in my view, for a prosecuting authority to commence such proceedings as it wishes against whomsoever it wishes regardless of who might have received an infringement notice, unless, of course, the penalty has been paid under the infringement notice, which would then bar any action from proceeding.
[15] My view is that the applicable legislative provision is the Local Government Act, which deals with infringement notices. The scheme of pt 9, div 2, subdiv 2 is that the giving of an infringement notice is facilitated and has the consequence, by s 9.21 of the Act, that where a modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed, then the bringing of proceedings and the imposition of penalties is barred in relation to the alleged offence.
[16]However, where the infringement notice has not been paid within 28 days and the notice has not been otherwise withdrawn, there is nothing to prevent the local authority from instituting such proceedings as it considers necessary and appropriate. It is not, in my view, committed to a process which requires that any proceedings which it might commence be commenced against the person to whom it has issued infringement notice reminders and demands.
Having regard to the statutory framework, I find that there is no merit in Mr Mongol's first ground of appeal. The reference in the infringement notice to cl 3.6(1) of the Parking Local Law (Stopping or parking on or adjacent to a median strip) did not curtail the prosecution of Mr Mongol for a different offence under the Parking Local Law, in circumstances where Mr Mongol had not paid the modified penalty and could not invoke the operation of s 9.21(2) of the Local Government Act. Consistent with the reasons of Chaney J in Rodi v City of Joondalup, I find that on the language of the Local Government Act, the election of the appropriate charge to prosecute is a matter of discretion of the prosecuting authority.
The first ground of appeal must fail as it is predicated on a construction of the Local Government Act that is not open on the language of the statutory instrument viewed as a whole, considered in its context. The learned Magistrate made neither an error of law or fact in applying cl 3.10(e) of the Parking Local Law. I therefore do not consider that the first of Mr Mongol's grounds has a reasonable prospect of succeeding and I would not grant leave in relation to it.
Ground 2 ‑ there was no sign which prohibited parking
Mr Mongol argued that the learned Magistrate erred on the basis that he failed to consider that there was no sign which expressly prohibited parking in the location where Mr Mongol parked his vehicle on 5 August 2021.
The trial
In considering this ground of appeal, I make the following observations as to the trial.
First, the transcript reveals the fact that the absence of a sign proximate to the area where Mr Mongol parked his vehicle on 5 August 2021 was the subject of evidence before the learned Magistrate at trial. In the course of Mr Mongol's cross‑examination, the following exchange occurred:[57]
[57] ts 13 ‑ 14 (9 December 2021).
SLOAN, MR: Okay. Okay. And you've ‑ and ‑ in your understand you were permitted to park there because there were no signs there?
ACCUSED: Yes. There were no signs and there was 20, 25 car park there already.
SLOAN, MR: So you were simply unaware of the fact that you weren't allowed to park on a footpath?
ACCUSED: Yes, because there is no sign. If there is no sign that means you are allowed to park. That's my understanding.
SLOAN, MR: So you were not ‑ not aware of the provisions of the local law then?
ACCUSED: Well, I only got this booklet from you now. So, you know, I ‑ I didn't go to ‑ to read all the – all the laws.
SLOAN, MR: You ‑ you could have researched. You ‑ you could have looked that up?
ACCUSED: I could have researched before parking there or what do you mean?
SLOAN, MR: Yes. You should be aware of the parking restrictions in the area?
ACCUSED: Well, there was no sign. There was no (indistinct) sign.
SLOAN, MR: Okay. And you were ‑ you were late for work on the day in question?
ACCUSED: No, I wasn't late. I was on the time but all the parkings were full.
SLOAN, MR: Okay?
ACCUSED: And there was ‑ yes. There was no ‑ there is no enough ‑ there is no enough parking in the area. I've been going there for more than two years.
SLOAN, MR: Okay?
ACCUSED: No parking.
SLOAN, MR: Okay. No further questions, your Honour.
Secondly, there was no challenge to Mr Mongol's evidence that there was no sign which expressly prohibited parking in the vicinity of where Mr Mongol parked his vehicle on 5 August 2021.
Thirdly, the transcript reveals that the absence of a sign was a fact that the learned Magistrate did consider in determining the matter. In the course of delivering his oral reasons for decision at the conclusion of the trial, his Honour observed as follows:[58]
Now, it's just not practical for the council to put up signs every single place that you could possibly think of where people's ingenuity might indicate that they can fit their vehicle. Here, it's a footpath that's wide enough to take vehicles so people like Mr Mongol did on this day park their vehicles on there but it doesn't legitimise it, and it's not a situation where you need some signage because the law says you can't do it, and ignorance of the law is of no excuse.
The respondent's position
[58] ts 17 (9 December 2021).
In summary, the respondent submitted that the transcript reveals that the lack of signage was an issue of fact considered by the learned Magistrate, who determined that the fact that there was no sign provided no defence to the charge. Further, the respondent argued that the learned Magistrate correctly found that Mr Mongol's failure to know that it was an offence to park his vehicle on or over the footpath constituted an ignorance of the law; and as a result, Mr Mongol's mistaken belief did not constitute a defence to the charge.[59]
Disposition
[59] Respondent's submissions pars 17 ‑ 19; ts 26 ‑ 27 (25 March 2022).
First, there is no question that his Honour considered the lack of signage in his disposition of the matter. The transcript makes plain that his Honour did so.
Secondly, there was no statutory requirement for the respondent to have erected 'no parking' signs on or in the vicinity of the footpath around the roundabout located on Fiona Wood Road in Murdoch.
Thirdly, the City of Melville made a local law under the Local Government Act which, subject to certain exceptions, prohibited a person from parking a vehicle so that a portion of the vehicle is on or over a footpath or a place of refuse for pedestrians: Parking Local Law s 3.10(e).
Fourthly, the effect of Mr Mongol's evidence was that he was not aware of that local law and the learned Magistrate's reasons revealed that the learned Magistrate had turned his mind to whether Mr Mongol's ignorance of the law would afford him any excuse.
Fifthly, his Honour concluded and I accept that the effect of Mr Mongol's mistake was one of law. In this regard, I note that s 22 and s 24 of the Criminal Code 1913 (WA) concern criminal responsibility and mistake. Section 22 of the Criminal Code relevantly provides:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence unless knowledge of the law by an offender is expressly declared to be an element of the offence.
Section 24 of the Criminal Code provides:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
As was observed by Wheeler JA, with whom Steytler P agreed in Tey v City of Perth [2006] WASCA 211 [14]:
In summary, s 24 provides that a mistake of fact may be a defence. A mistake as to whether the area is set aside for parking by vehicles of a different class, where there is a sign setting the area aside, is one of law. A case which is closely analogous, in my view, is Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493, a decision of the High Court. In that case a commercial fisherman went to the office of the Fisheries Department and asked for copies of regulations relating to current seasons for the rock lobster fishing zones. He was given copies of regulations and notices which left out a regulation relating to a prohibition of fishing in a particular zone. He thought he had a complete copy of the regulations. He fished in that zone and he was charged. The High Court held that he was rightly convicted, as his mistake was one of law (relating to whether it was lawful to fish in the zone) and not a mistake of fact.
Mr Mongol's mistake, brought about by his ignorance of the law, is one of law. The fact that the City of Melville had not erected 'no parking' signs on the footpath around the roundabout located on Fiona Wood Road in Murdoch, does not ground a defence under s 24 of the Criminal Code as a mistake of fact. Section 24 affords Mr Mongol no defence.[60]
[60] See also Fitas v City of Vincent [2015] WASC 329 [25] and [26], citing Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 [46]; and Borino v City of Stirling [2019] WASC 13 [32].
For these reasons I do not consider that the second of Mr Mongol's grounds has a reasonable prospect of succeeding and I would not grant leave in relation to it.
Related complaint
In the expanded appeal grounds at par 2,[61] Mr Mongol also contends that the learned Magistrate had overlooked that he had parked with 20 to 25 other vehicles, in the same location and in the absence of 'no parking' signs. As to his fourth appeal ground, Mr Mongol also contends:[62]
I was not mistaken of law or I didn't break any parking law the only reasons that I parked my vehicle at that location as because I witnessed around 20 to 25 vehicles were parked at the same street & location on daily basis for the past two years and also most importantly because there was no display sign of NO Paring Zone or NO stopping Zone. As this street is next to the Murdoch train station and Fiona Stanley hospitals car parks.
[61] Appeal notice filed on 4 January 2022, page 3, reproduced at [14] above.
[62] Appeal notice filed on 4 January 2022, page 3; see [14] above.
At trial, Mr Mongol gave evidence that when he parked his vehicle in the location near Fiona Wood Drive, there were about 20 to 25 cars also parked there, and that vehicles had been parking there for months.[63] Mr Lawrence gave evidence to the effect that he had seen people parked in the same location occasionally.[64]
[63] ts 9 (9 December 2021).
[64] ts 9 (9 December 2021).
By way of additional evidence, Mr Mongol sought to tender a bundle of photographs that he had taken in the period from 10 January 2022 to 9 March 2022. The bundle was marked for identification as B4. Mr Mongol described the photographs as photographs of cars parked at the same location as he had parked on 5 August 2021.
Two of the photographs in the bundle were taken by Mr Mongol on 9 March 2022 at the same location, and show yellow and black signs erected and no parked vehicles. The wording on the signs cannot be made out from the photographs. Mr Mongol gave additional evidence to the effect that the wording on the signs concerned parking and the signs contained a warning to the effect that parking was not allowed and infringements may apply.[65]
[65] ts 19 (25 March 2022).
Again, having regard to Mr Mongol's evidence, I find that Mr Mongol made a mistake, the effect of which was one of law. That others also made the same mistake, and that signage has now been erected, does not afford Mr Mongol any defence to the charge. For these reasons I do not consider that the related complaint has a reasonable prospect of succeeding and I would not grant leave in relation to it.
Ground 3 ‑ circumstances of sudden or extraordinary emergency existed
I understand Mr Mongol to contend that the learned Magistrate failed to consider that Mr Mongol was acting in circumstances of emergency at the time of the offence on 5 August 2021, as Mr Mongol had been called to attend the emergency department at Fiona Stanley Hospital to perform the function of an interpreter.
The trial
In considering this ground of appeal, I make the following observations as to the trial.
First, the reason for Mr Mongol driving and parking on Fiona Wood Road, Murdoch close to Fiona Stanley Hospital, was the subject of evidence.
Mr Mongol gave evidence to the effect that for the last 12 years, he has provided interpreting services to the Department of Justice, the Department of Health and Education and the Department of Home Affairs. He tendered into evidence various interpreter accreditation cards.[66] In the course of his cross‑examination, Mr Mongol gave evidence that:[67]
So on that day I was there to provide an emergency interpreting service for a patient in the emergency department.
[66] Exhibit A1; ts 11 (9 December 2021).
[67] ts 12 (9 December 2021).
Through Mr Lawrence, Mr Mongol's letter to the City of Melville was tendered. In that letter, Mr Mongol also gave an account of his attendance at Fiona Stanley Hospital in the following terms:
Dear Sir/Madam,
My name is Hadi Mongol & I am an interpreter for the hospital. I am writing to reappeal to the Chief Executive Officer of the City of Melville to appeal the infringement notice withdrawal due to an emergency at Fiona Stanley Hospital.
Today, 5th of August as usual, I was received a call to come to the hospital & provide an interpreting service for a patient at the emergency department around 1:00 PM.
As usual, I arrived at the hospital around 1:15 PM but todays it wasn't an unusual day that all parking was packed I think it was due to the new local case and COVID 19 testing the Hospital and I couldn't find any parking around the hospital, even our staff parking was too full where I usually park my car, as we get a discount parking for $0.48 per hour.
I drove around in different areas for hospitals for about 15/20 minutes to find a parking for my car but unfortunately, I could not find any parking and I was getting late for my job at the emergency department too.
I saw several vehicles were parked around the bushes & around the roundabout near car park 5.
And honestly, I thought, all these people were allowed to park on those areas due to this COVID testing at the hospital & also I did not see any sign of NO Parking Zone at that location. So, I parked my car along the other vehicles there but once return to my vehicle about an hour I found the infringement notice on my cars windscreen which was shocking and upsetting.
And now I am writing this letter to appeal for withdrawal of the infringement notice as I genuinely believed that I had no intention to break the parking rules, but it happened due to that an emergency and uncertain situation at the hospital.
I am sending a couple of photographs of the location, my interpreting ID & booking slip as evidence.
And I would be grateful if you can please consider withdrawing the infringement notice due to a genuine mistake.
…
When in cross-examination it was put to Mr Mongol that he was late for work, Mr Mongol did not accept the same. He gave evidence to the effect that he was on time, but tried for about 15 to 20 minutes to find parking, but that there was no parking available.[68]
[68] ts 13 ‑ 14 (9 December 2021).
At the conclusion of the evidence at trial, counsel for the City of Melville submitted that there was no sudden or extraordinary emergency, and that the defence could not be made out on the facts.[69]
[69] ts 15 (9 December 2021).
The transcript reveals that while no reference was made to s 25 of the Criminal Code, the learned Magistrate did consider whether circumstances of emergency existed. In the course of his reasons for decision, his Honour recorded that he had heard from Mr Mongol and had received his evidence that he works as an interpreter and had been booked for a job at Fiona Stanley Hospital on 5 August 2021.[70]
[70] ts 17 (9 December 2021).
In the course of his reasons for decision, his Honour also made the following findings of fact:[71]
As far as any business is concerned about the reason, Mr Mongol has just decided to do it and there is no emergency associated with it.
Sure, he was on a job. Sure, there might be some cheap parking available but he couldn't find anywhere so, just along with other people, parked on the footpath.
…
At the end of the day, Mr Mongol is protesting that because he had a particular job and other people had a reason to go to the hospital, that there should be parking for everyone who could possibly want to go to Fiona Stanley at any given time of any given day, and that's an issue that Mr Mongol will need to get elected to the City of Melville and campaign for more parking around the hospital or whatever. It certainly doesn't and can't excuse him – his parking of the car on the day.
… the elements of the offence [have] been clearly established beyond a reasonable doubt and there was no emergency, no other defence that's available to excuse at law what Mr Mongol did. So the court comes to the conclusion that, unquestionably, the charge has been proved beyond a reasonable doubt and convicts Mr Mongol accordingly.
[71] ts 17 - 18 (9 December 2021).
In the course of sentencing Mr Mongol, the following exchange also took place:
ACCUSED: It was about 45 minutes, your Honour. It was an emergency, that's why they called me and, your Honour, it's ‑ otherwise, why would I park there and there wasn't any sign there, your Honour.
HIS HONOUR: Because you said you looked around for 20 minutes. It was such an emergency; you drove around looking for parking for 20 minutes. You couldn't find any. Anyway. Look. I will never explain to you in a million years that you have absolutely no defence, nor do you have any moral high ground or any other thing in your favour.You just don't. But I will never be able to satisfy you of that. You will be fined the sum of $200 with costs of $2,003.
The respondent's position
In summary, the respondent submitted that the learned Magistrate did consider whether s 25 of the Criminal Code was available to Mr Mongol on the facts.
On behalf of the respondent, it was submitted that while it was considered, Mr Mongol failed to meet the evidential burden of establishing that s 25 was open to him in the circumstances and, as such, the defence did not arise in this instance.
Section 25 of the Criminal Code
Section 25 of the Criminal Code, which is reproduced below, concerns criminal responsibility in circumstances of emergency and provides that where certain conditions are satisfied, someone is not criminally responsible for something done in response to the perception of a sudden or extraordinary emergency:
25. Emergency
(1)This section does not apply if section 32, 246, 247 or 248 applies.
(2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3)A person does an act or makes an omission in an emergency if ‑
(a)the person believes –
(i)circumstances of sudden or extraordinary emergency exist; and
(ii)doing the act or making the omission is a necessary response to the emergency;
and
(b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
There is a subjective and an objective element to s 25.
The provision exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law.[72]
[72] R v Rogers (1996) 86 A Crim R 542, 546; Ajayi v The Queen [2012] WASCA 126; (2012) FLR 465 [52]; Floyd v The State of Western Australia [2013] WASCA 33 [25]; and Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45 [43].
The words in the phrase 'sudden or extraordinary emergency' used in s 25 of the Criminal Code have their usual and ordinary meaning.[73] A 'sudden emergency' has been described as 'one that comes upon the accused unexpectedly, catching her or him off‑guard'. An 'extraordinary emergency' is one which has been said to be 'unexpected or sudden', but 'a situation of "extreme gravity and abnormal or unusual danger"'.[74]
[73] Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 [42].
[74] Johnson v The State of Western Australia [2009]C:\doc-conversion\inputToHtml\[2009] WASCA 71 WASCA 71; (2009) WAR 116 [60] (dealing with the previous wording of s 25, which applies only to offences committed before 1 August 2008).
It is well established that it is unnecessary for an emergency to be both sudden and extraordinary. The emergency may be either sudden or extraordinary. However, the concepts of a 'sudden' emergency and an 'extraordinary' emergency may, in a particular case, overlap. That is, an emergency may, in a particular case, be both 'sudden' and 'extraordinary'.[75]
[75] Warnakulasuriya v The Queen [2012] WASCA 10; (2012) 261 FLR 260 [49] ‑ [50] (Buss JA dealing with s 10E of the Commonwealth Criminal Code, however the same reasoning would apply to s 25 of the Criminal Code.).
Mr Mongol carried the evidentiary burden of raising the defence of emergency. If the relevant beliefs are properly raised by the evidence, then the prosecution was required to negate the applicability of the exculpatory provision by proving one of the following:[76]
(a)the accused did not hold either of the beliefs specified in s 25(3)(a); or
(b)the accused's act or omission was not a reasonable response to the emergency in the circumstances that the accused believed them to be; or
(c)there were no reasonable grounds for the accused's beliefs.
[76] See Petersen [131]; NPK v The State of Western Australia [2020] WASCA 50 [21].
Section 36 of the Criminal Code makes the provisions of pt V of the Criminal Code applicable to 'all persons charged with any offence under the statute law of Western Australia'.
Disposition
I understand Mr Mongol to complain that the learned Magistrate failed to consider that he was acting in circumstances of emergency at the time of the offence on 5 August 2021, as he had been called to attend the emergency department at Fiona Stanley Hospital to perform the function of an interpreter and provide an emergency interpreting service. This contention is not made good by the transcript of the hearing, which reveals that the question of whether there were exculpatory circumstances was the subject of submission and was considered by the learned Magistrate.
It can be readily discerned from his Honour's reasons that his Honour did not accept that Mr Mongol believed that circumstances of sudden or extraordinary emergency existed; nor that doing the act (parking his vehicle on the footpath surrounding the roundabout) was a necessary response to an emergency. I draw this from his Honour's finding that:[77]
As far as any business is concerned about the reason, Mr Mongol has just decided to do it and there is no emergency associated with it.
Sure, he was on a job. Sure, there might be some cheap parking available but he couldn't find anywhere so, just along with other people, parked on the footpath.
[77] ts 17 (9 December 2021).
A fair view of the Magistrate's reasons for decision is that, after having heard all of the evidence, his Honour formed the view that the evidentiary burden was not met by Mr Mongol.
To the extent that Mr Mongol contends that the learned Magistrate erred in so finding, I note as follows.
First, the learned Magistrate had the benefit of the advantages of seeing the witnesses and hearing the evidence presented. Upon hearing the evidence, which included that of Mr Mongol, it is clear that the Magistrate did not accept that Mr Mongol believed that circumstances of sudden or extraordinary emergency existed; nor that doing the act (parking his vehicle on the footpath surrounding the roundabout) was a necessary response to an emergency. In reviewing the evidence led at trial, this court does not have, as his Honour did, the advantage of getting a feel for the case and the people involved.
Secondly, there was no evidence that Mr Mongol was urgently required to attend the emergency department of Fiona Stanley Hospital on 5 August 2021.
The evidence led did not suggest that Mr Mongol was urgently required to attend the emergency department of Fiona Stanley Hospital upon receiving a call to attend. Instead, the evidence suggests that Mr Mongol was required to attend the emergency department 'around 1pm', and did arrive at the location in his vehicle around 1.15 pm.[78] No evidence was led as to when Mr Mongol received the call to attend. Further, there was no evidence of the nature or severity of the condition of the person for whom Mr Mongol was to interpret.
[78] Exhibit P6 (Mr Mongol's letter to the City of Melville, pars 2 and 3).
Secondly, the evidence of Mr Mongol having upon his arrival looked for a parking spot for 15 or 20 minutes was not consistent with a finding that he believed that he was suddenly or extraordinarily required to present to the emergency department of Fiona Stanley Hospital, or that Mr Mongol believed that such emergency existed sometime shortly prior to 1.40 pm, when he parked his vehicle on the footpath. (The booking slip records that Mr Mongol began interpreting at 1.40 pm and concluded at 2.15 pm.)[79]
[79] Exhibit P6 (booking slip).
Thirdly, there was no evidence of Mr Mongol seeking to confirm the status of the person for whom he was to interpret or the need for him to immediately attend the emergency department before deciding to park his vehicle on the footpath, even though he had received the call to attend the hospital by telephone, and his evidence makes plain that he had his mobile telephone with him as he used it to take photographs.
Finally, the effect of Mr Mongol's evidence was that it was a regular occurrence for him to provide interpreting services at the hospital. The only extraordinary aspect of the day in question was that Mr Mongol was unable to readily locate a place to park.
Accordingly, there was no evidence from which a finding could be made that, at the time that Mr Mongol left his vehicle on the footpath, there were reasonable grounds for a belief that circumstances of sudden or extraordinary emergency existed. The evidence of Mr Mongol that he was required to attend the emergency department of Fiona Stanley Hospital at around 1.00 pm on 5 August 2021 to provide an emergency interpreting service was not sufficient to reasonably ground such belief.
For these reasons I do not consider that the third of Mr Mongol's grounds has a reasonable prospect of succeeding and I would not grant leave in relation to it.
Ground 4 - the fine imposed was manifestly excessive
Mr Mongol says that the '$2,023 fine is excessive which includes the legal costs of the prosecutor because the parking infringement was only $70'.[80] The ground of appeal was not further developed in the written submissions filed by Mr Mongol.
[80] Appeal notice filed on 4 January 2022, page 3.
The legal principles governing an appeal contending that error should be inferred, on the basis that a sentence is manifestly excessive, are well settled.[81] In summary, the question is whether the sentence imposed was reasonably open to the magistrate, not merely whether the appellate court would have exercised the sentencing discretion differently. In answering that question, the appellate court should have regard to the following: the maximum sentence prescribed by law for the crime; the range of sentences customarily imposed for the offence; the seriousness of the offence on the scale of offences of that type; and the offender's personal circumstances.
The maximum penalty
[81] Nguyen v Comptroller‑General of Customs[2018] WASCA 170 [30]. See also Greenfield v The State of Western Australia [2019] WASCA 29 [23].
The maximum penalty for a contravention of a provision of the Parking Local Law is $5,000.[82]
[82] Parking Local Law cl 7.11.
The penalty imposed by the learned Magistrate was well below the maximum, being only 4% of the possible penalty that may have been imposed under cl 7.11 of the Parking Local Law.
To the extent that Mr Mongol complains that a penalty of $200 was imposed when the modified penalty referenced on the infringement notice was $70, I note as follows.
Mr Mongol was issued with an infringement notice for having contravened cl 3.6(1) of the Parking Local Law, for which a modified penalty of $70 was payable. However, the modified penalty was not paid by Mr Mongol within the time prescribed or at all and a prosecution was commenced. The benefit of paying the modified penalty afforded by s 9.21 of the Local Government Act was not enlivened, and a prosecution was commenced by a prosecution notice dated 30 September 2021.
The penalty imposed upon Mr Mongol by the learned Magistrate at the conclusion of the trial for contravention of cl 3.10(e) of the Parking Local Law was $200. This penalty was imposed pursuant to cl 7.11 of the Parking Local Law and was not a modified penalty payable upon the issue of an infringement notice. The modified penalty that was payable by Mr Mongol had he not sought to challenge the matter has no bearing on the appropriate penalty to be imposed after a successful prosecution pursuant to cl 7.11 of the Parking Local Law.
The range of sentences customarily imposed for the offence
I note that the range of sentences customarily imposed do not establish the range of a sound exercise of the sentencing discretion. There is no single correct sentence. What is important are the unifying principles, which sentences in comparable cases reveal and reflect.
As to the range of penalties customarily imposed for parking offences under local laws, counsel did not refer to nor was the court readily able to identify any decisions of a single judge or the Court of Appeal where the penalty imposed was the subject of appeal.
In a review of published judgments, six decisions were identified which reveal the quantum of the fine imposed at first instance for contraventions of local parking law, but do not address the appropriateness of the same. They are described very briefly below.
In Fitas v City of Vincent, the appellant was convicted of an offence contrary to a local parking law, namely for parking without displaying a valid permit. He was fined $85 and ordered to pay costs. The conviction was upheld on appeal. The fine was not the subject of appeal.
In Genovese v City of Perth [2012] WASCA 89 and Genovese v City of Perth [2011] WASC 68, the appellant was convicted of an offence contrary to a local parking law, namely for stopping a vehicle on or over a footpath. He was fined $100 and ordered to pay costs, which was upheld both on appeal to a single judge and by the Court of Appeal.
In Prazmo v Urquhart [2017] WASC 215, the appellant was convicted of an offence contrary to a local parking law, namely for parking in a parking facility controlled by a sign stating 'authorised vehicles only' without displaying a valid permit. He was fined $60 and ordered to pay costs, which was not disturbed on appeal.
In Clements v Town of Claremont [2011] WASCA 253 and Clements v Town of Claremont [2011] WASC 193, the appellant was convicted of an offence contrary to a local parking law, namely for parking a vehicle such that the vehicle did not face the direction of travel. He was fined $45 and ordered to pay costs, which was upheld both on appeal to a single judge and by the Court of Appeal.
In Borino v City of Stirling, the appellant was convicted of an offence contrary to a local parking law, namely for stopping a vehicle at the side of a carriageway marked with a continuous yellow edge line. He was fined $250 and ordered to pay costs, which was upheld on appeal.
In Basham v City of Joondalup [No 2] [2016] WASC 120; (2016) 258 A Crim R 451 and Basham v City of Joondalup [2015] WASC 345, the appellant was convicted of an offence contrary to a local parking law, namely parking a vehicle in an applicable parking area without paying a fee for a period of parking and displaying a parking ticket. He was fined $60 and ordered to pay costs. The appellant only appealed against the amount of costs awarded against him and not the amount of the fine itself.
In my opinion, these decisions are insufficient to establish a range of penalties, and concern different parking offences from that with which Mr Mongol was convicted. The available sample is too small to give an indicative range. Further, Genovese v City of Perth is the sole example of a penalty for a parking offence of stopping a vehicle on or over a footpath, being the offence for which Mr Mongol was convicted.
However, if I am wrong in this conclusion, I would say that the fine imposed as against Mr Mongol was not not outside the range of penalty imposed for broadly similar offending.
The seriousness of the charge
As to the seriousness of the charge, I note that when describing the offending, the Magistrate stated:[83]
… where Mr Mongol parked his car is fairly and squarely … on a footpath at a roundabout which one would have thought, in itself, is quite dangerous because it obviously, potentially, obstructs vision of people in the roundabout… .
[83] ts 17 (9 December 2021).
The offending in this case occupies a lower place on the scale of seriousness and is reflected in the penalty imposed by the learned Magistrate.
Mr Mongol's personal circumstances
Before the penalty was imposed, Mr Mongol made submissions concerning the imposition of a penalty and costs in the amount suggested by counsel for the respondent, and very briefly addressed his personal circumstances.[84]
Disposition
[84] ts 19 (9 December 2021).
Having regard to the maximum penalty; the seriousness of the charge; and Mr Mongol's personal circumstances, I am not satisfied that the fine of $200 imposed was manifestly excessive.
Costs
In Basham v City of Joondalup [No 2], Fiannaca J comprehensively outlined the legislative framework governing who can appear in prosecution proceedings under a local law, as well as the court's power to award costs in summary criminal proceedings and the exercise of that discretionary power. I have regard to and adopt his Honour's summary of the applicable principles and cases, and I proceed on the basis that there would be no substantial miscarriage of justice if a costs order was within the sound exercise of discretion by the magistrate, the costs being fair and reasonable having regard to the circumstances of the case.
To the extent that Mr Mongol contends that the costs awarded against him were manifestly excessive, I am also not satisfied that such a ground of appeal has been made out.
First, the respondent engaged a law firm to conduct its prosecutions, as it was entitled to do pursuant to s 172(3)(b)(i) of the Criminal Procedure Act. In my opinion, it was reasonable for the respondent to instruct a lawyer for a matter of this kind.
Secondly, under the relevant costs scale, being the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2020, the maximum amount allowed for a half-day trial in the Magistrates Court is $8,074, inclusive of preparation of case and counsel fee.[85] The respondent sought $2,003 in costs. This sum was comprised of eight hours of work by a restricted practitioner at $231 per hour, plus $155 for the court filing fee.[86]
[85] Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2020 table C, item 4(a).
[86] Respondent's submissions par 37; ts 27 (25 March 2022).
As noted by counsel for the respondent in the written submissions, the matter involved preparation in respect of issues relating to the interpretation and application of provisions of the Local Government Act and the Parking Local Law, issues relating to the admissibility of evidence and issues relating to the potential application of s 24 and s 25 of the Criminal Code.[87] On balance, I find that the costs sought bear a reasonable relationship to the nature of the proceedings in light of these issues to be resolved.
[87] Respondent's submissions par 41(e).
Thirdly, as above, I accept that the offending in this case occupies a lower place on the scale of seriousness and that the quantum of the costs imposed may cause Mr Mongol financial hardship. While this is a relevant consideration to whether the costs awarded are proportionate,[88] I am not satisfied that having regard to the same, the costs awarded were outside the range of a sound exercise of discretion of the Magistrate.
[88] Basham v City of Joondalup [No 2] [91], [100] ‑ [101].
The purpose of the costs order is not to punish Mr Mongol, either for the offence or the conduct of his defence, but his approach to the matter and the issues he raised go to the question of whether the costs bear a reasonable relationship to the actual proceedings. I have come to the conclusion that they do and that there has been no substantial miscarriage of justice.
Accordingly, I find that the learned Magistrate did not err in the exercise of discretion as to the award of costs.
I do not consider that the fourth ground has a reasonable prospect of succeeding (in relation to the penalty imposed or the costs order) and I would not grant leave in relation to it.
Ground 5 ‑ the evidence of the prosecution witness was not 'true and correct'
The final ground pressed by Mr Mongol was that the evidence of the prosecution witness, Mr Lawrence, was not 'true and correct'. I understood Mr Mongol to contend that the bundle of photographs admitted into evidence at trial as exhibit P5 contained photographs taken by Mr Mongol on 5 August 2021 and provided to the City of Melville as attachments to the communication of 5 August 2021 in which he sought to appeal the infringement notice.
In this regard, Mr Mongol submitted as follows:[89]
So, your Honour, in terms of the prosecution, relying on a witness that gives false evidence and untrue evidence – that questions the prosecution's duty of code of conduct and obligation and integrity as a lawyer. Your Honour, I've been – I've been interpreting for the court for many years. And one of the most important things I always hear from the lawyers that it is they have to follow a code of conduct.
They have to be true. They have to be honest with the court. They have to lead the court with their honestly. But I don't see that here, and it was – it was – it was – it was misleading, and the witness was misleading the court that it was his photograph and he took the photograph. So that raised the question of the integrity of the prosecution. That is the main thing.
If everyone is – the prosecution says they want – it was my photograph, it wasn't his photograph, and it doesn't change anything on the infringement; I understand it. But what about – what is the question of integrity and code of conduct as a lawyer. So that's the best – another thing, your Honour.
The trial
[89] ts 24 ‑ 25 (25 March 2022).
Two bundles of photographs were tendered into evidence at trial through Mr Lawrence. The evidence of Mr Lawrence in relation to the second bundle of documents was as follows:
SLOAN, MR: I will show you some further photographs. Did you also take those photographs?
LAWRENCE, MR: Yes.
SLOAN, MR: Are you able to describe those photographs to the court?
LAWRENCE, MR: This is a roundabout on Fiona Wood Road, surrounded by a footpath.
SLOAN, MR: Are you able to just show ‑ hand it ‑ show it up to the full court, thank you?
LAWRENCE, MR: With cars parked on the footpath and a gray Haval parked there with two pedestrians walking there on the footpath.
SLOAN, MR: Yes. And when did you take those photographs?
LAWRENCE, MR: At the time, just before the infringement was issued.
SLOAN, MR: Sure. I seek to tender those photographs as well, your Honour.
HIS HONOUR: Yes. They will be exhibit PS.
EXHIBIT P5 Prosecution
FURTHER PHOTOGRAPHS
Mr Mongol did not cross‑examine Mr Lawrence in relation to his evidence in this regard.
Additional evidence
As noted above, I propose to deal with the merits of appeal in light of the additional evidence of Mr Mongol. The effect of Mr Mongol's additional evidence is that the photographs tendered as exhibit P5 at trial were taken by Mr Mongol using the camera on his mobile telephone at 2.38 pm on 5 August 2021, upon his return to his vehicle.[90]
[90] ts 12 ‑ 13 (25 March 2021).
Mr Mongol sought to tender a black and white copy of a photograph that he said he took on his mobile telephone on 5 August 2021, after he returned to his vehicle at 2.38 pm. The photograph was accepted and marked for identification as B2.
MFI B2 appears to be a black and white and poorer quality copy of the first of the two photographs which comprise exhibit P5.
Mr Mongol also gave evidence to the effect that on 5 August 2021, he emailed to the City of Melville a copy of his photographs, as attachments to his email communication by which he appealed the issue of the infringement notice, which was tendered at trial with only two of five attachments as exhibit P6. By way of additional evidence, Mr Mongol sought to tender a copy of his email of 5 August 2021, which was in a different format than exhibit P6, as was marked for identification as B3.
Both MFI B3 and exhibit P6 reveal that there were five separate attachments to the email communication of 5 August 2021, two of which were photographs.
The respondent's position
As to this ground, counsel for the respondent submitted that the issue was not raised by the appellant during the course of the trial and the appellant neither objected to, nor cross‑examined the prosecution witness about, the bundle of photographs which comprised exhibit P5 at the trial. However, the appellant had the opportunity to do both of those things during the trial. As a result, the evidence before the learned Magistrate was that the photographs comprising exhibit P5 were taken by the prosecution witness just before the infringement was issued.[91]
[91] Respondent's submissions par 46, making reference to ts 7 (9 December 2021).
The respondent submitted that even if the court was to find that the photographs were taken by Mr Mongol and not Mr Lawrence, there is no miscarriage of justice on the basis that the finding would not have affected the outcome of the trial proceeding.
It was submitted that the photographs show other vehicles as well as Mr Mongol's vehicle, parked on the footpath with pedestrians walking on the footpath and, on that basis, support the finding that Mr Mongol has committed the offence. Counsel submitted that the fact that other vehicles were parked on the footpath provides no defence.
Further, as to Mr Mongol's submission that the evidence of Mr Lawrence was not true and correct, counsel for the respondent submitted that, in this case, there is no miscarriage of justice because nothing turns on the photographs. He submitted that the photographs merely show vehicles on a footpath and, if anything, would go to the reasonableness of a mistaken belief that the appellant held regarding a factual element of the offence, for example, whether or not it was a footpath. Counsel submitted that in this case, as Mr Mongol's mistake was one of law, the evidence sought to be adduced is irrelevant.[92]
Disposition
[92] ts 27 (25 March 2022).
I have considered the ground of appeal on the basis that Mr Mongol has established that he took the photographs tendered at trial as exhibit P5, and Mr Lawrence did not.
To the extent that Mr Mongol contends that the conviction is unsafe as it is based on the evidence of Mr Lawrence, in circumstances where the court ought be satisfied that Mr Lawrence's credit has been impugned, I note as follows.
First, the evidence which ultimately grounded the conviction was not in dispute. Mr Mongol did not dispute that on 5 August 2021, Fiona Wood Road, Murdoch was in the district of the City of Melville; that he was the driver of the vehicle at the time of the alleged offence; nor that he parked the vehicle at a particular location on the day in question (that is, an area that bounded the roundabout on Fiona Wood Road, Murdoch).
The Magistrate found that the area that bounded the roundabout on Fiona Wood Road, Murdoch was a footpath. That finding was supported by the photographs, and not solely Mr Lawrence's description of the location.
In these circumstances, to the extent that it could be said that the Magistrate weighed in the balance flawed evidence and his reasons were grounded on an uncorrected error of fact, I find that the error was inconsequential or immaterial to the decision to convict, such that the court can now conclude that no substantial miscarriage of justice has occurred by reason of the same.[93]
[93] WS v Gardin [239].
In this case, I am not satisfied that the final ground has a reasonable prospect of succeeding and I would not grant leave in relation to it.
Application to adduce additional evidence ‑ determination
I turn now to the appellant's application made pursuant to s 40(1)(e) of the Criminal Appeals Act to admit the additional evidence comprised of Mr Mongol's oral evidence and the documents marked for identification as B1 to B4.
As noted above, the general rule as set out in s 39(1) of the Criminal Appeals Act is that the appeal court must decide the appeal on the evidence and material that was before the lower court. Section 39(3) however provides that s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.
Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may 'admit any other evidence'.
As to the principles to be applied in relation to the court's power under s 40(1)(e) to admit 'any other evidence' in an appeal against conviction; and the distinction between fresh evidence and new evidence in an appeal against conviction, the Court of Appeal in Tsang v Francis [2021] WASCA 131 observed as follows:
[79]In Clarke v The State of Western Australia, Buss P (Mazza JA agreeing) made these observations about s 40(1)(e) in the context of an appeal to this court under pt 3 of the Criminal Appeals Act:
The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power. See, generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [108] (McHugh, Gummow & Callinan JJ). The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).
[80] Those observations apply, with necessary modifications, in the context of an appeal under div 2 of pt 2 of the Criminal Appeals Act.
[81] There is, of course, a well-established distinction at common law between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen.
[82] Traditionally, the courts have treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence. At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen. At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant. See Gallagher v The Queen; Mickelberg v The Queen.
[83]Ordinarily, there will be no miscarriage of justice at a criminal trial unless:
(a) in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and
(b) in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.
[84]In Clarke [246], Buss P said:
In my opinion, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence are relevant to the exercise of the discretion under s 40(1)(e) and the determination of whether there was a miscarriage of justice at the trial within s 30(3)(c), but the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles. As McHugh, Gummow and Callinan JJ noted in CDJ, in the context of civil proceedings, the common law courts have always reserved to themselves 'an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it' [105]. The power under s 40(1)(e) is to be exercised, and whether there was a miscarriage of justice within s 30(3)(c) is to be determined, having regard to, amongst other relevant considerations, the overarching principle of the proper functioning and the protection of the integrity of the criminal justice system in the particular case. The interests of justice in that context include not only the interests of an accused who has been convicted, but also the public interest as represented by the State.
(Footnotes omitted.)
Mr Mongol's evidence and the documents marked for identification as B1 to B3 are all new evidence. The bundle of photographs marked for identification as B4 were taken after the date of the alleged offending and the trial, and are fresh evidence.
Having regard to the documents marked for identification as B1 to B3; to Mr Mongol's evidence as to the reference to cl 3.6(1) of the Parking Local Law on the infringement notice; and to Mr Mongol's additional evidence in relation to the origin of the photographs tendered at trial through Mr Lawrence and Mr Lawrence's evidence in relation to the same, I am not satisfied that the new evidence establishes that Mr Mongol is innocent or the new evidence raises such a doubt that the court is satisfied that Mr Mongol should not have been convicted.
Having regard to the bundle of photographs marked for identification as B4 and Mr Mongol's additional evidence in relation to the recent appearance of signage, I am not satisfied that there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), the learned Magistrate, acting reasonably, would have acquitted Mr Mongol.
For reasons that are apparent from what I have said in dealing with the individual arguments raised in support of the grounds of appeal, I am not satisfied that the additional evidence that Mr Mongol seeks to admit on the appeal, either by itself or in conjunction with the material already before me that was before the learned Magistrate, establishes that the alleged errors of fact or law, or the alleged miscarriage of justice occurred. I therefore refuse the application to admit the additional evidence.
Conclusion
For the reasons I have given, the appellant's application to adduce additional evidence is refused. Further, on the grounds of appeal pressed by Mr Mongol, I refuse the application for leave to appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
25 JULY 2022
30
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